Vol. 32, No. 5, 3. ETHICALLY SPEAKING The Ethics of Requiring Retirement at Age 70 for Some Judges in Wyoming.

• Author: By John M. Burman

Wyoming Bar Journal

2009.

Vol. 32, No. 5, 3.

ETHICALLY SPEAKING The Ethics of Requiring Retirement at Age 70 for Some Judges in Wyoming

Wyoming LawyerIssue: December, 2009ETHICALLY SPEAKING The Ethics of Requiring Retirement at Age 70 for Some Judges in Wyoming(fn1)By John M. BurmanAs the late Stuart Brown once told me, he would soon have to retire from the Wyoming Supreme Court because he would reach the age of 70, the age of what he called "statutory senility."(fn2) That statutory senility he referred to applies to some Wyoming state court judges (Supreme Court justices(fn3) and District Court judges,(fn4)) but not to others (Circuit Court and Municipal Court judges)."(fn5) To further compound the situation, after retirement, Wyoming Supreme Court justices and District Court judges may be assigned to hear cases,(fn6) with the result that a judge who has passed the age of "statutory senility,"may sit indefinitely thereafter (such judges get paid, too. "A retired justice or judge shall receive as a salary during any period of assignment an amount equal to the current compensation of a judge of the court to which he is assigned."(fn7)). Meanwhile, other judges, with dockets that are just as demanding (Circuit and Municipal Court judges), never have to retire. Requiring some members of the bench to retire and not others raises interesting ethical issues.

As I thought about mandatory retirement for some judges, two questions occurred to me. First, is there an ethical reason for requiring some judges to step down? Second, is there a medical reason to require retirement of some judges? If the answer to either question is "yes,"then mandatory retirement makes sense, although the age of 70 may not. If there is not, requiring retirement is not warranted. In either event, it does not make sense to force some Wyoming judges to retire and not others. Ethically, all judges should be treated equally.

The Legal Framework

Perhaps I have been a lawyer for too long, as the first question that occurred to me was is it legal to force state court judges to retire? The answer is "yes."And that answer was given by the United States Supreme Court in a 1991 opinion, written by Justice O'Connor (when she wrote the opinion, Justice O'Connor was about 60. Before her appointment to the Supreme Court, Justice O' Connor was a member of the Arizona Court of Appeals. In Arizona, judges must retire at age 70.(fn8) Ironically, Justice O'Connor served on the Supreme Court until she was 75, several years after she would have had to retire if she had remained an Arizona judge.) In the opinion, the Court rejected a challenge brought by judges in Missouri,(fn9) a state that requires judges to retire at age 70.(fn10)

The Court began its consideration of Missouri's mandatory retirement requirement for judges by classifying judges as a non-suspect class; their Constitutional challenge, therefore, was subject to rational basis(fn11) review. Under that standard, the Court had no trouble finding that: (1) appointed Missouri state judges constitute appointees "on a policymaking level,"within the meaning of an exclusion to the Federal Age Discrimination in Employment Act,(fn12) and (2) the Missouri Constitution's mandatory retirement provision does not violate the Fourteenth Amendment's equal protection clause.(fn13) (Missouri's system of selecting judges is based on merit, and served as a model for Wyoming's system.)

While the Missouri case would control a challenge to Wyoming's system if all state judges were treated the same, there does not appear to be even a rational basis for a state to treat judges differently. This seems particularly true when the same persons are, at various times, subjected to different standards. The most recent example is Judge Campbell. While a member of the Circuit Court in Cheyenne, he had life-time tenure, subject to retention elections. When he recently became a District Court judge in the same place, he became subject to the mandatory retirement age of 70. And while it doesn't take much to pass rational basis review, treating judges differently seems likely to run afoul of even that deferential standard. It is, quite simply, difficult to think of a rational basis for treating a judge differently when he or she moves from the Circuit Court to the District Court or Supreme Court bench. So while it would be permissible to force all Wyoming judges to retire at age 70 (or at a different age), or to give all Wyoming judges life-time tenure, subject to retention elections, treating them differently raises significant Constitutional questions.

In upholding Missouri's mandatory retirement plan, the Supreme Court noted that: "The people of Missouri have a legitimate, indeed compelling, interest in maintaining a judiciary fully capable of performing the demanding tasks that judges must perform."(fn14) Further, the Court said: "It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age."(fn15) Finally, the Court noted that: "The Missouri mandatory retirement provision, like all legal classifications, is founded on a generalization."(fn16) Generalizations, however, are not necessarily Constitutionally infirm. "It is far from true that all judges suffer significant deterioration in performance at age 70. It is probably not true that most do. It may not be true at all. But a State "'does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.' Murgia, 427 U.S., at 316, 96 S. Ct., at 2568, quoting Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 1161, 25 L.Ed.2d 491 (1970)."(fn17)

Once appointed, Wyoming Supreme Court justices must stand for retention every eight years,(fn18 )Wyoming District Court judges must stand every six years,(fn19) and Circuit Court judges are subject to retention every four years.(fn20) The terms of municipal judges vary. The term of a municipal judge "shall be the same as the terms of other appointed officers of the city or town."(fn21)

Why are some Wyoming judges forced to retire and not others? And why may retired judges continue to hear cases indefinitely? Who knows? The different treatment is probably the result of an oversight. Whatever the reason, the statute should be amended, for the benefit of all Wyomingites. There is simply no ethical or medical reason to impose an arbitrary age of 70 for retirement on some judges and not on others.

Under the Wyoming Constitution, judicial power is vested "in a supreme court, district courts, and such subordinate courts as the legislature may, by general law, establish . . . ."(fn22) The Wyoming Legislature has created Circuit Courts(fn23) and Municipal Courts in cities or towns.(fn24 )Furthermore, while the Wyoming Supreme Court is "vested with management and supervisory powers over the circuit courts . . . ,"(fn25) the Legislature has provided that District Courts "shall be free of administrative and fiscal...